Intellectual property law is good. Excess in intellectual property law is not. This blog is about excess in Canadian and international copyright law, trademarks law and patent law. I practice IP law with Macera & Jarzyna, LLP in Ottawa, Canada. I've also been in government and academe. My views are purely personal and don't necessarily reflect those of my firm or any of its clients. Nothing on this blog should be taken as legal advice.

Wednesday, July 01, 2015

Access Copyright’s Post-Secondary Tariff – The Glacier is Starting to Melt at the Copyright Board

Here is a recent Notice from the
Copyright Board concerning the Access Copyright (“AC”) proposal for
post-secondary tariffs. This Notice has not yet been posted on the Board’s
website, although it was issued at 11:40 AM yesterday, June 30, 2015:

The Board is of the preliminary view that, in
accordance with the attached Access’ request, Access Copyright Post-Secondary
Educational Institution Tariffs for the years 2011-2013 and for the years
2014-2017 should be consolidated. The reasons invoked by the Board in its
ruling of December 4, 2013 to deny the application for consolidation have become
moot with the passage of time. The Board also agrees on a preliminary basis
with Access that a hearing on the consolidated matter could be scheduled for
early 2016.

Mr. Maguire
can provide comments on the Board’s preliminary view no later than Friday,
July 3, 2015. Access may reply to the comments no later than Monday,
July 6, 2015.

Following Access Copyright’s
attached request, the Board suspends sine
die the deadline to respond to the June 3, 2015 Order. Further
instructions will be issued shortly. Attachment: 2015-06-16 Application to
Copyright Board requesting a hearing (final).pdf

The Board often moves at a glacial rate. But when
it moves quickly, it can do so at amazing speed. When glaciers being to melt,
they sometimes do so dramatically and make a big splash.

The above Notice of June 18, 2015 followed in turn
very quickly from AC’s letter of June 16,
2015 setting the stage for judicial review following
shortly after the Board’s Order of
June 3, 2015. The June 3, 2015 Order asked some
perfectly reasonable questions about AC’s proposed “Premium” and “Choice” offerings
to post-secondary institutions. And no – AC has not gone into the cable TV
business. On May 25, 2015 I
had asked on my blog, re the implications of the
Board’s devastating Provincial Government tariff:

AC’s letter of June 16, 2015 can be seen here.
It doesn’t want to answer the perfectly reasonable questions and seems to be
setting the stage to go to Court to force the Board to proceed with a hearing
on AC’s Post-Secondary tariff, which has indeed been in a state of suspended
animation for over a year. This is a file that has put the Board in a nearly impossible
situation “Twixt the Rock and a Hard Place”.

Interestingly, AC also advised the Board on June
16, 2015 that “Also, we request that you kindly remove Blakes as counsel of
record on this matter. Instead, Art Renaud, Claire Gillis and I should be
listed on the Board’s service list for Access Copyright”. So, AC becomes yet another major collective to
partially or wholly assimilate its Board and even judicial review work in-house.
Indeed, its recent judicial
review notice re the Provincial Tariff was filed by in-house counsel.
This is yet another indication of the changing economics of Copyright Board
work and the apparent possibility that some large firms representing some large
collectives and objector associations have made or allowed these cases to
become so complex and expensive that “big law” may have priced itself out of this
once very lucrative market.

So – the Board seems poised to proceed as follows
– allowing AC and the one remaining objector, an unrepresented student named Sean Maguire, just a few days to
respond – with Canada Day intervening.

The Board evidently is of the
“preliminary view” that it intends, inexplicably, to go along with AC’s request
that it “revisit” its December 4, 2013 ruling denying consolidation. Now, and
potentially controversially, the Board seems intent on consolidating Tariffs for
the years 2011-2013 and for the years 2014-2017, a request that the Board had quite convincingly
denied on December 4, 2013. In that brief ruling, the
Board rightly raised complexities potentially arising from AC’s claims to
payment for linking, hyperlinking and “making available”.

The Board evidently intends proceed
with an oral hearing in 2016

The hearing will be effectively
unopposed (apart from Mr. Maguire, I am unware of any remaining objectors or
interveners), following withdrawal of the two main objectors – AUCC and ACCC.
As I have previously indicated, this withdrawal has never been publicly
explained, but may well be for budgetary reasons, since AUCC and ACCC had
already by mid-2012 spent almost three million that we know aboutto
accomplish apparently little if anything other than providing a huge amount of
interrogatory information for the benefit of AC and to reach model agreements
that have been widely rejected by their own members.

Frankly, even as an avid Board watcher and
sometime active counsel, it is not the slightest bit apparent to me why “The reasons
invoked by the Board in its ruling of December 4, 2013 to deny the application
for consolidation have become moot with the passage of time”.

If the Board provides AC with a “mandatory tariff”
of any significant value, especially one that is based upon a “making
available", linking, hyperlinking or other controversial basis, there will be much
concern and even outrage but very unclear and uncertain recourse, if any, in the public interest. That is because the enormous post-secondary
community potentially directly affected were represented by associations (AUCC
and ACCC) that have withdrawn their objections, without any public explanation.
I should remind readers that I have been involved in a recent
intervention in the Supreme Court of Canadaon the issue of whether a
tariff can be “mandatory”, and many await the result of that case with
considerable interest.

All that said, nothing can be predicted with
much certainty regarding the Board these days. Recent decisions of the Board may
suggest that the Board is taking a more inquisitorial approach that allows the
Board to go beyond the submissions and evidence of counsel, which may sometimes
be inadequate on all sides, despite the money being spent. This is perfectly
legitimate, as long as the Board takes appropriate steps to ensure procedural
fairness. So, we may see even more of this in the Post-Secondary file.

Somebody needs to look out for the public interest
in the post-secondary file. The AUCC and ACCC, although they have spent
millions on legal fees, have apparently done nothing useful to do so.